Learning about Expungement

By Kristen Sherman, Attorney at Adler Pollock & Sheehan Published in Street Sights April 2009, May 2009

Part I Clean Record is Worth Pursuing

In difficult economic times, having a clean record is more important than ever. A person's criminal history may affect efforts to find employment, rent an apartment, obtain a loan, obtain certain licenses, or receive government benefits. The Internet has made information about criminal histories publicly and easily available. Criminal records are no longer necessarily private. It is important to make certain that these records are accurate.

Expungement is a legal process that permits qualified individuals to have their criminal records sealed or destroyed. This two-part series offers an overview of the expungement process in Rhode Island, but it is not a substitute for good legal counsel because the facts of each case are different. Part I explains what records that may be expunged and the preliminary steps of the expungement process. Part II will explain the process for pursuing expungement in court.

The first step is to determine whether the criminal records at issue are eligible to be expunged. Records of acquittals and dismissals can usually be removed from the public record. Rhode Island law requires that, in cases involving an "acquittal, dismissal, no true bill, no information" or where the person is exonerated, records of identification must be destroyed. Similarly, a defendant who has been "acquitted or otherwise exonerated of all counts in a criminal case" may have his or her records sealed.

These two provisions are not available to those who have been convicted of a felony. Moreover, where the crime at issue follows a prior plea of not guilty, guilty, or nolo contendere to a crime involving domestic violence, there is a three-year waiting period before the records can be sealed, expunged, or destroyed.

Certain filings in District Court may also be expunged. A filing means that the judge places a case on file and the case will not proceed, provided that the defendant maintains good behavior throughout the one-year period. As long as the defendant does not have a violation within the one-year period, the complaint is automatically quashed and all records are expunged.

Under certain circumstances, records of misdemeanor and felony convictions may be expunged. A first offender can move for expungement of records of a felony or misdemeanor conviction. A first offender is a person who has been convicted only once. To continue to qualify as a first offender, a person seeking expungement of a particular conviction cannot have any later convictions.

Other limitations exist. Expungement is not available for crimes of violence, such as murder, manslaughter, first degree arson, kidnapping with intent to extort, robbery, larceny from the person, first- and second-degree sexual assault, first- and second-degree child molestation, and several different types of assault.

Part II The Expungement Process: Wiping the Slate Clean

Part I of this two-part series described the cases in which an individual would be eligible for expungement and the effect of having one's record expunged. This Part II of the series is designed to provide an overview of the expungement process itself. Under Rhode Island law, a person seeking expungement must file a motion to expunge in the court in which the original conviction took place. A motion is a legal document filed with the court that asks the court to take some action or grant some form of relief. The motion will need to list the details of the case to be expunged, including the disposition of that case. If the file for the case involving the conviction is more than four or five years old and is no longer stored at the courthouse, it may be necessary to obtain a certified copy of the disposition in the case from the Judicial Records Center in Pawtucket (5 Hill StreetPawtucket; phone: 222-3249).

In most cases, the motion is prepared and signed by an attorney. However, for individuals who do not have an attorney, some courts offer a form which saysMotion to Expunge. The court clerk should have the form and be able to guide you in completing them. At the time the motion to expunge is filed, the party seeking expungement, known as the "petitioner," must get a hearing date for the motion to be heard by a judge. The clerk will help get the motion assigned to the court calendar. By law, a party must give the Attorney General's office and the police department that originally brought the charge notice of the hearing at least 10 days before the hearing is scheduled to take place. Notice is provided by sending them a copy of the motion to expunge. It may be best to send this material by registered mail or certified mail to insure they received the notification, or hand deliver it to the AG's office and the police department, if the mailing cost is an issue.

On the date of the hearing, the judge will consider "all relevant testimony and information." The judge has discretion to grant or deny the motion to expunge. However, the judge cannot grant the motion unless certain criteria are met. The burden is on the petitioner to demonstrate that he or she: (1) has not been convicted or arrested for any felony within the ten-year period (or five year period in the case of a misdemeanor) prior to the motion to expunge being filed; (2) is not the subject of any pending criminal proceedings; and (3) has exhibited good moral character in the period prior to seeking expungement. In addition, the judge must conclude that the petitioner has been sufficiently rehabilitated and that expungement serves the public interest.

If the judge grants the motion to expunge, he or she will sign and enter an order. An order is a legal document that reflects the judge's decision and usually directs that certain actions be taken. In the case of expungement, the order will direct that all records relating to the case that is expunged be removed from the public record. The petitioner should come to the hearing with a draft order ready for the judge to sign if the motion is granted. Once the judge signs the order, the petitioner must take it to the clerk's office and should obtain certified copies of the order. Those certified copies must be sent to the Bureau of Criminal Information, the Attorney General's office, the police department that originally brought the charges and any other law enforcement agency that has copies of the records in dispute. It may be prudent to keep a copy of the motion for one's self.